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Page 2 2 MLJ 244, *; [1980] 2 MLJ 244 1 of 8 DOCUMENTS 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd) The Malayan Law Journal OH KENG SENG V PUBLIC PROSECUTOR [1980] 2 MLJ 244 FEDERAL COURT CRIMINAL APPEAL NO 39 OF 1978 FC KUALA LUMPUR DECIDED-DATE-1: 3 MARCH 1980, 14 JULY 1980 SUFFIAN LP, RAJA AZLAN SHAH CJ (MALAYA) & WAN SULEIMAN FJ CATCHWORDS: Criminal Law and Procedure - Charge of sedition - Charge - Speech alleged to be seditious should be set out in charge - Amendment of charge - Sedition Act, 1948 (Revised 1969), ss. 3(1) and 4(1)(b) HEADNOTES: This was an appeal from the decision of the High Court reported in [1979] 2 MLJ 174. On the appeal the question was raised whether the charge was proper. Held: (1) in a charge of sedition it is not necessary to set out the particular words of the law defining sedition in the charge. What the law requires is that the speech or those parts of the speech alleged to be seditious should be set out in the charge and then it is for the court to decide having considered all the evidence whether those words mentioned are seditious; (2) in this case the appellant knew full well what had been alleged against him, as his defence indicated; (3) although the amendment to the charge was superfluous, the trial judge had power to amend the charge and the statutory requirements were complied with, so that the appellant was in no way prejudiced. Cases referred to Yoh Meng Heng v Public Prosecutor [1970] 1 MLJ 14 Public Prosecutor v Oh Keng Seng [1977] 2 MLJ 206, 210

FEDERAL COURT Yeap Ghim Guan for the appellant.

Page 3 2 MLJ 244, *; [1980] 2 MLJ 244 Mohamed Noor bin Haji Abdullah (Deputy Public Prosecutor) for the respondent. ACTION: FEDERAL COURT LAWYERS: Yeap Ghim Guan for the appellant. Mohamed Noor bin Haji Abdullah (Deputy Public Prosecutor) for the respondent. JUDGMENTBY: WAN SULEIMAN FJ (delivering the judgment of the Court): We dismissed this appeal and affirmed the conviction and sentence imposed by the learned trial judge. However an important point of law was raised during the hearing which requires a ruling by this court. This appeal has a rather chequered history. Since the original charge preferred against appellant was the [*245] object of considerable misgivings on the part of the learned trial judge we should perhaps set it down in full. Appellant was charged before the judge in the High Court, Seremban as follows: -"That you on the 23rd day of June, 1972 between 8.40 p.m. and 9.35 p.m. at the Padang Besar, Tampin, in the District of Tampin, in the State of Negri Sembilan, uttered seditious words in Mandarin (the full translation of the text of which is attached as Schedule 'A' to this charge) and that you have thereby committed an offence under section 4(1)(b) of the Sedition Act 1948 (Revised 1969) and punishable under section 4(1) of the said Act." At the close of the prosecution case on September 7, 1976, he was acquitted and discharged, the learned judge being of the view that the speech was not seditious. On appeal by the Public prosecutor this court set aside the order of acquitted and directed that the appellant be called upon to make his defence. In his defence, to cite the very words of the trial judge, "the accused did not seriously deny that he had made the speech which was the subject-matter of the charge. He said that his speech was fair criticism of Government policies, that he had no intention of causing racial trouble and that he never advocated to the people that they should take the law into their own hands." In short he relied on the defence provided by section 3(2) of the Sedition Act. At the close of the defence case, Mr. Yeap, counsel submitted that the charge against the appellant was improper and defective because it did not contain particulars alleging under what category of seditious tendency the accused had contravened the Sedition Act, 1948. He cited the case of Yoh Meng Heng v Public Prosecutor [1970] 1 MLJ 14 in support. In that case, which was an appeal from the judgment of the Sessions Court, the second charge (the one alleged to be defective) read: -"That you on April 18, 1960 at about 6.30 a.m. at an unnumbered hut at Bertam Estate, Kepala Batas, in the District of Butterworth, in the State of Penang, were found, without lawful excuse, to have in your possession a subversive document, to wit a document titled 'Is Malaya a Democratic Country? Is there Freedom of Assembly, Association, Speech, Publication, Strike, Demonstration etc.' and that you have thereby committed an offence punishable under section 29(1) of the Internal Security Act No. 12 of 1960." The appellant in that appeal was apprehended, while he was with a group of persons painting some writings on the roadside. On the next day, an inspector took him to his house where in a room, which his mother, a prosecution witness, admitted, was occupied by him, the publication entitled "Quotations from

Page 4 2 MLJ 244, *; [1980] 2 MLJ 244 Chairman Mao" specified in the first charge and the alleged subversive documents were found. Translations were made of the pamphlets (P2A) and produced in court. This was the only evidence adduced by the prosecution. It was not stated in the charge just how the pamphlets were classified as coming within the definition of "subversive document" as defined in section 29 of the I.S.A. Ong J. (as he then was) went on to set out the definition of subversive document in section 29(3) of the I.S.A.: it being defined as any document having in part or in whole a tendency -(a) to excite organised violence against person or property in the Federation; or (b) to support, propagate or advocate any act prejudicial to the security of the Federation or the maintenance or restoration of public order therein or inciting to violence therein or counselling disobedience to the law thereof or to any lawful order therein; or (c) to invite, request or demand support for or on account of any collection, subscription, contribution or donation, whether in money or in kind, for the direct or indirect benefit or use of persons who intend to act or are about to act, or have acted, in a manner prejudicial to the security of the Federation or to the maintenance of public order therein, or who incite to violence therein or counsel disobedience to the law thereof or any lawful order therein. The learned judge then referred to Ratanlal's Law of Crimes which, he remarked, shows that specimen charges relating to sedition set out particulars by reference to the particular words of the law defining what is a seditious tendency. He added that the charge in that appeal was embarrassing to the appellant in not having specified in which manner they (the documents) were alleged to be subversive and therefore the appellant was prejudiced in his defence. He therefore set aside the order of conviction and ordered a retrial. We should point out that the Sessions Court President in reading the offending document came to a finding that the pamphlets were subversive "in that they have the tendency to excite organised violence and counselling disobedience to law" and therefore coming within the ambit of section 29(3)(a) & (b) of the I.S.A., 1960 but the learned appellate judge was unable to find evidence of such tendency in that document. Perhaps this view of the document had some considerable effect in persuading Ong J. to take the course which he did. In the present appeal following the decision in Yoh's case the learned judge remarked that the charges against the appellant are on somewhat similar lines as section 29 of the I.S.A., 1960. In charging the appellant with uttering seditious words, he said, the charge did not specify the particular category of seditious tendency as defined in section 3(1) which is violated by those words. He then held that the appellant had been prejudiced and embarrassed in making his defence for he was not in a position to know exactly what he was required to rebut in defence. In consequence he ruled that the charge was defective for want of essential and material particulars, and therefore the charge as framed could not be sustained. It is not strictly speaking correct that this point regarding the charge was only raised for the first time at the close of the defence case but Yoh's case was indeed first cited on this occasion. However the reasoning behind what the learned trial judge then remarked seem to us, with great respect, to indicate a remarkable confusion of thought, for his Lordship said, "Now if I had been exercising an appellate jurisdiction [*246] I would have no hesitation in dismissing the charge forthwith or at least in ordering a retrial. However, sitting in the first instance I have to view this case in a different light." As we have alluded to before this point had been raised in a somewhat different form by learned defence counsel at the commencement of the prosecution case (See Public Prosecutor v Oh Keng Seng [1977] 2 MLJ 206, 210) and we quote: -"Counsel for the defence objected to the whole speech being included in the charge on the ground that the defence would not be in a position to know whether the whole speech was alleged to be seditious or only part

Page 5 2 MLJ 244, *; [1980] 2 MLJ 244 of it. He said that it was important for the defence to know exactly which parts of the speech were alleged to be seditious and therefore only those parts should be incorporated in the charge. The learned trial judge overruled this objection, as he thought there was nothing improper in annexing the whole speech to the charge, for he said (this point was conceded by both counsel before us) the speech had to be considered as a whole in order to decide whether it was seditious or not. However, at the end of the prosecution case the learned judge directed the Deputy Public Prosecutor to underline (and the Deputy Public Prosecutor complied) the particular passages which the prosecution said were seditious." From this passage it is abundantly clear that the learned judge was then satisfied with the propriety of the charge. Let us now examine the specimen charge in Ratanlal's Law of Crimes (21st Edition at p. 322) which had apparently persuaded Ong J. to hold that the charge in Yoh's case was defective for want of sufficient particulars of a certain sort. The specimen charge reads: -"That you, on or about the day of at by writing (or spreading) the words ( mention them) brought (or attempted to bring) into hatred or contempt (or executed or attempted to execute disaffection towards) the Government established by law in India, and thereby committed an offence under section 124A... ." (We have omitted portions irrelevant for our purpose). We note that though the objection raised by counsel regarding the charge led to the offending passage of appellant's speech (the full translation referred to as Schedule "A" had formed part of the original charge) being underlined by the learned deputy at the instance of the trial judge, the former had narrowed these down to two passages in the first appeal before us. With respect, we think that Ong J. erred in Yoh's case in requiring the particular words of the law defining what is a seditious tendency to be set out in the charge, and it follows that we hold that the learned trial judge in this case was equally in error in requiring the same particulars to be set out in the instant appeal. The offending passages of the speech, in our considered opinion, (and Ratanlal's specimen charge required only the words to be mentioned), had been sufficiently indicated, the appellant was in no way embarrassed or prejudiced in his defence. What the law requires is that the speech or those parts of the speech alleged to be seditious should be set out in the charge, and then it is for the court to decide having considered all the evidence, whether those words mentioned are seditious. We should add that the appellant knew full well all the time what had been alleged against him, as his defence indicates. Since the amendment to the charge, though superfluous, was something within the power of the trial court under section 158 of the Criminal Procedure Code and the requirements of section 159 had also been complied with, the appellant was in no way prejudiced. Accordingly we dismissed the appeal and affirmed the conviction and sentence imposed. Appeal dismissed. SOLICITORS: Solicitors: Yeap & Co. LOAD-DATE: June 3, 2003